IMPORTANT POINT
Variations to some extent which are higher than 0.3% i.e. the permissible range of variations and contradictions in results of both experts, is sufficient for benefit of doubt.

ORDER

Cri M.A. No. 9014 of 2014 (for exemption)

S. Muralidhar, J.— Exemption allowed subject to all just exceptions.

2. The application is disposed of.

Cri. M.A. No. 9015 of 2014 (for condonation of delay in filling the petition)

3. For the reasons stated in the application, the delay in filing leave to appeal is condoned.

4. The application is disposed of.

Cri.L.P. No. 381 of 2014

5. The State seeks leave to appeal against the impugned judgment dated 21st September 2013 passed by the learned Additional Chief Metropolitan Magistrate-II (ACMM), Patiala House Courts, New Delhi in Complaint Case No. 174 of 2003 acquitting the Respondents of the offence under Section 2 (ia), (a), (b), (j) and (m) of the Prevention of Food Adulteration Act, 1954 (PFA Act), Rule 23 read with Rules 28 and 29 of the PFA Rules, 1955 punishable under Section 16 (1A) and Sections 2 (ix) (k) of the PFA Act read with Rule 32 (e), (f) and (i) of the PFA Rules punishable under Section 16 (1) read with Section 7 of the PFA Act.

6. The Food Inspector (FI) purchased a sample of Dal Arhar from the Respondent No. 1 at about 5.15 pm on 8th July 2002. One sample when tested by the Public Analyst (PA) was found to be adulterated with synthetic colouring matter Tartrazine. It must be noted that in the present case the Department proceeded against the Respondents both for adulteration as well as misbranding.

7. For inexplicable reasons, the complaint was filed nearly 9 months later on 4th April 2003. This perhaps itself led to variations beyond the permissible limit in the subsequent report of the Central Food Laboratory (CFL) as regards the second sample.

8. The variations in the two reports have been discussed by the trial Court in para 34 of the impugned judgment which reads as under:

34. It is evident from the PA’s report Ex. PW/1/G that the sample was found adulterated because it was found coloured with synthetic colouring matter i.e. Tartrazine and was also misbranded. Further, the Director, CFL also found the sample to be adulterated as the sample was having synthetic colouring matter viz. Tartrazine and was also found misbranded. It is not in dispute that both the experts have found the presence of synthetic colour Tartrazine but so far as the results of other tests are concerned there are variations to some extent. In PAs reports, damaged grains are Nil but the Director CFL have found the same 0.5%. Further the PA has found Weevilled grains to the tune of 0.09% whereas the Director CFL has found the same Nil. Likewise as per PAs opinion, Moisture was 6.98% whereas, as per Director CFLs opinion the same was to the tune of 9.2%. Thus there are variations to some extent which are higher than 0.3% i.e. the permissible range of variations and further there are contradictions in results of both the experts.

9. In view of the above variations, the trial Court has rightly concluded that the two samples were not truly representative of the food article purchased and as such the benefit of doubt as regards the question of adulteration ought to be given to the accused. This Court is unable to find any error as far as the above conclusion on the question of adulteration is concerned.

10. On the aspect of misbranding, the trial Court noted that the first warning which was required to be mandatorily given, was in fact, not shown to have been given to the Respondents in writing. Even on the above factual aspect, no error can be found in the impugned order of the trial Court.

11. No grounds have been made out by the Petitioner for grant of leave to appeal against the impugned judgment of the learned ACMM. The petition is dismissed.

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